MARTIN APPUHAMY, Appellant, and SUB- INSPECTOR OF POLICE, JAFFNA, Respondent

005-NLR-NLR-V-64-MARTIN-APPUHAMY-Appellant-and-SUB-INSPECTOR-OF-POLICE-JAFFNA-Respondent.pdf


Martin Appuhamy v. Sub-Inspector of Police, Jaffna
34 .
1962Present: Basnayake, C.J., H. N. G. Fernando, J.,
and Sinnetamby, J.
MARTIN APPUHAMY, Appellant, and SUB-INSPECTOR OFPOTAOR.
JAFFNA, Respondent
S. C. 1003 of 1959—M. G. Jaffna,, 17,894Criminal procedure■—Accused produced in custody without process—Plaint filed by
Police—Duty of Magistrate to record statements on oath before framing charge—
Inadmissibility of hearsay statements—Criminal Procedure Code„ ss. 121 (1),
122 (3), 126A, 127, 148 (1) (a) (b) {c) (d) (c) {/), 150, 151 (2), 151 (2), 187 {!)—
Evidence Ordinance, ss. 2 (1), CO.
The decision in Mohideen v. Inspector of Police, Pettah (59 N. L. R. 217) is|applicable to all cases where an accused person is brought before a Magistrate;in custody otherwise than on a summons or a warrant.
The accused had first been produced by the Police with a report under section.126 (A) of tho Criminal Procedure Code and remanded pending investigations. .On a subsequent date the polico filed plaint under section 148 (1) (6).
Held, that, before framing a charge against the accused, it was incumbenton the Magistrate to have recorded statements on oath as required by sections151 (2) and 187 (1) of tho Criminal Procedure Code.
Lamanalissa de Silva v. S. I. Police, Matara (62 N. L. R. 92), overruled.
Held further (H. N. G. Fernando, J., dissenting), that Tikiri Banda «.Perimpanayagam (61 N. L. R. 286) rightly decided that in every case wheresection 187 (1) of the Criminal Procedure Code renders an examination undersection 151 (2) necessary, a charge cannot be framed against an accused personunless and until “ a person able to speak to the factB of the case ” has beenoxamined, and that hearsay statements cannot bo acted upon for the purposesof framing a charge in such a case.
BASNAYAKE, C.J.—Marlin Appuhamy v. Sub -Inspector of Police, Jaffna 35
Two questions reserved under section 48 of the Courts Ordinancefor decision of more than one Judge.
M. L. de Silva, with K. Jayasekera, for Accused-Appellant.
D. St. G. B. Jansze, Q.O., Attorney-General, with Ananda Pereira,Senior Crown Counsel, and V. S. A. Pullenayegum, Crown Counsel, forComplainant-Respondent.
Cur. adv. vult.
April 11,1962. Basnayaxe, C.J.—
The following questions were reserved by my brother T. S. Fernandounder section 48 of the Courts Ordinance:—
(а)“ Is the decision of the Court in Mohideen v. Inspector of Police,'Pettah1, applicable only in the case of accused persons against whomproceedings have been instituted under section 148 (1) (d) of theCriminal Procedure Code ? ”
(б)“ Does the decision in the case of Tikiri Banda v. Perimpandyagamain so far as it excludes the admission of hearsay upon an examinationof a person in terms of section 151 (2) of the Criminal Procedure Codecorrectly interpret the relevant provision of law ? ”
A Bench of three Judges was constituted for their determination inaccordance with an order in that behalf made by me under section 48Aof the Courts Ordinance.
In regard to the first question, Mohideen v. Inspector of Police, Pettah,deals with a case for which provision is made in section 151 (2), i.e.,where proceedings have been instituted under paragraph (d) of section148 (1). That paragraph deals with the case in which a person accusedof an offence is brought before a Magistrate in custody without process.For the purposes of section 187 (1) such a person-would bo anaccusedwho is brought before the Court otherwise than on summons or warrant.That provision requires that the Magistrate shall, in accordance withthe direction in section 151 (2), first examine on oath the person whohas brought the accused before the Court and any other person whomay be present in Court able to speak to the facts of the case, and ifon such examination he forms the opinion that there is sufficient groundfor proceeding against the accused, frame a charge against him.
While section 151 (2) deals with only proceedings instituted underparagraph (d) of section 148 (1), i.e., on any person being brought beforea Magistrate in custody without process accused of having committedan offence which such Court has jurisdiction either to inquire into ortry, section 151 (1) deals with cases in which proceedings are institutedunder paragraphs (e) and (/) of section 148 (1). Section 151 (1) dealswith cases in which the accused is not in custody. In those cases the
*(1957) 59 N. L. R. 217.
* {1959) 61 N. L. R. 286.
36BASNAYAIvE, C.J.—Marlin Appuhamy v. Sub-Inspector of Police, Jaffna
process indicated in the 4th column of the First Schedule would issue—summons where summons is prescribed in the first instance and warrantwhere warrant is prescribed ; but before issuing a warrant in any caseunder paragraph (a) or (J>) of section 148 (1) the Magistrate is boundto examine on oath the complainant or some material witness or witnesses.He may also examine them in a case in which summons may issue inthe first instance, but he is not bound to do so. In a case under paragraph(c) of section 148 (1) the Magistrate is bound, before issuing process, torecord a brief statement of the facts which constitute his means ofknowledge of tbe grounds of his suspicion, as the case may be.
“ Where proceedings are instituted under paragraphs (e) or (/) ofsection 148 (1) no examination of the complainant or any other personis required as a condition precedent to the issue of summons.,. The .Magistrate is bound to issue summons or warrant accordingly as thefourth column of the First Schedule provides that the case is one in 'which a summons or a warrant should issue in the first instance.”
Provision is also made in section 150 for a case in which the offencealleged in proceedings instituted under section 148 (1) (a) or (6) is anindictable offence and no person is accused of having committed it.In such a case too the Magistrate may examine on oath the complainant■or informant and any other person who may appear to him able to speakto the facts of the case. If, after recording such evidence, there is in 'his opinion sufficient ground for proceeding against any person, he isbound to issue process against such person in the manner provided insection 151. Failure to comply with the corresponding provision of theCode (s. 149 (4)) prior to its amendment has been held to be fatal(Mohammado v. Appmca1). In that case Shaw J.‘ said—‘‘The failureto comply with section 149 of the Code is in my opinion a fatal irregularitywhich cannot be cured under the provision of section 425 The ratiodecidendi of the case of Mohideen v. Inspector of Police, Peltah, is thatthe failure to observe conditions precedent to the issue of process isfatal to any proceedings which take place without the observance ofsuch conditions. That decision deals primarily with a case fallingunder section 148 (1) (d) ; but the ratio decidendi is applicable to othersimilar cases.
Now in regard to the second question the relevant sections providethat the Magistrate should examine on oath—
(а)in the case of section 150 (1) the complainant or informant and
any other person who may appear to the Magistrate to be ableto speak to tbe facts of tbe case,
(б)in the case of section 151 (1) the complainant or some material
witness or witnesses, and
(c) in the case of section 151 (2) the person who has brought the accusedbefore the Court and any other person who may be present inCourt able to speak to the facts of the case.
l(1915) 1 O. W.R.170.
H. N. G. FERNANDO, J.-—Martin Appuhttmy v. Sub -Inspector oj Police, Jaffna 37
It would appear that the sections contemplate the taking of evidence,and there is no doubt that the proceedings under sections 150 and 151are judicial proceedings. Section 2 (1) of the Evidence Ordinanceprovides that the Ordinance shall apply to all judicial proceedings inor before any Court other than Courts-Martial. Therefore in the takingof evidence under sections 150 and 151 the provisions of the EvidenceOrdinance must be observed, l^i an examination under those sectionshearsay evidence can be admitted only in cases in which the admissionof such evidence is permitted by the Evidence Ordinance and in no other.Oral evidence must in all cases be direct. Section 60 explains whatthat means—
if it refers to a fact which could be seen, it must be the evidence
of a witness who says he saw that fact *,
if it refers to a fact which could be heard, it must be the evidence
of a witness who says he heard that fact;
if it refers to a fact which could be perceived by any other sense
or in any other manner, it must be the evidence of a witnesswho says he perceived that fact by that sense or in that manner ;
if it refers to an opinion or to the grounds on which that opinion
is held, it must be the evidence of the person who. holds thatopinion on those grounds.
Any person who gives oral evidence in an examination under section150 or 151 may only give direct evidence as explained in section 60.Tikiri Banda v. Perimpanayagam1 lays down the law correctly in excludingsuch hearsay evidence as is not permitted by the Evidence Ordinance.
H. N. G. Fernando, J.—
The first question reserved for determination by this bench is thefollowing :—
“ Is the decision of the court in Mohideen v. Inspector of Police,
Pettah, (59 N. L. It. 217) applicable only in the case of accused
persons against whom proceedings have been instituted under section
148 (1) (d) of the Criminal Procedure Code ? ”
It would appear from the terms of the reference made by T. S. Fernando,J. that his reason for reserving this question was that doubts are castby the decision of my Lord the Chief Justice in S. C. No. 712, M. G.Matara No. 55987, S. C. M. March 14th, 1960 (now reported at 02 N. L. R.92) on the scope of the decision of a bench of three Judges in Mohideen v.Inspector of Police, Pettah (supra).
The brief judgment in 62 N. L. R. 92 refers to the fact that in thatcase there had been a written report to the court under section 148 (1) (6),and that in addition the accused was also produced by the police. Onthese facts the Chief Justice held “that circumstance does not convert
1 (1959) 61 N. L. R. 286.
38 H. N. G. FERNANDO, J—Martin Appuhamy v. Sub-Inspector of Police, Jaffna
proceedings instituted under section 148 (1) (6) to proceedings institutedunder section 148 (1) (d). The procedure prescribed in section 151 (2)is confined to proceedings instituted under section 148 (1) (<2) With,respect, the opinion just cited is entirely in accord with that whichI myself held, and indeed that was the reason why in reserving theappeal in Mohideen v. Inspector of Police, Pettah (supra) for fuller consi-deration I expressed disagreement with^the earlier judgment of Soertsz J.in Vargheese v. Pereral./
But my view was overruled by the majority of the bench of threeJudges who considered the point in Mohideen v. Inspector of Police,Pettah (supra). In that case an accused had been produced in court
in terms of section 126 A (1) of the Criminal Procedure Code by a police
«
officer who submitted at the same time to the Magistrate the reportof an investigation into a cognizable offence. Thereupon the Magistrateacting under section 126 A (2), remanded the prisoner into custody untilAugust 22nd, 1955. On that day the police sergeant filed a reportin terms of section 148 (1) (&) of the Code and when the report was filedthe accused was present in court under Fiscal’s custody. K. D. de Silva, J.writing the principal judgment declined to accept the submission thatthe case fell under section 148 (1) (b) and not under section 148 (1) (d),and he decided accordingly that sub-section 2 of section 151 (which interms applies to a case where proceedings have been instituted undersection 14S (1) (d) ) must be complied with, namely that the Magistratemust examine on oath the person who brought the accused before thecourt and any other person able to speak to the facts of the case.
Much of the reasoning of K. D. de Silva, J. was based on the terms ofsection 187 (1) of the Code, and his opinion, which iii my view was theratio decidendi, was as follows :—
“ Tliis section 187 (1) includes not only a case where the accused .is present in custody, but also when he is present on remand on policebail or on being warned by the police to appear in court. In all thoseinstances it would appear that it is incumbent on the Magistrate to*hold the examination contemplated by section 151 (2).”
My Lord the Chief Justice (at page 218) was of the same opinion :—•
“ Be that as it may, the question whether proceedings were institutedunder section 148 (1) (d) or section 148 (1) (b) is of little importancein this case as admittedly the accused was brought before the courtotherwise than on a summons or warrant. In such a case clearly theprocedure under section 187 must be followed. The word “ brought ”in that section does not mean brought by a police officer, but compelledto attend either by virtue of the fact that he is in police custody andis forwarded to court or is accompanied by a police officer or is compelledto attend by virtue of having executed a bail bond under section 126 Aor section 127.”
1 (1042) 43 N. L. R. 504.
H. N. G. FERNANDO, J.—Martin Appuhamy v. Sub-1 nspector of Police, Jaffna 39
In view of these dicta the subsequent decision in Lamanatissa de Silva v.Sub-Inspector of Police, Matara (62 N. L. R. 92), must be held to havebeen wrongly decided. The answer to the first question we are nowconsidering is to be found in the dicta which I have just cited fromMohideen v. Inspector of Police, Pettah (supra).
The second question for decision is whether Tikiri Banda v.Perimpanayagam (S. I. Police) rightly decided that in every case wheresection 187 of the Code renders an examination under section 151 (2)of the Code necessary, a charge cannot be framed against an accusedperson unless and until “ a person able to speak to the facts of the case ”has been examined, and that hearsay statements cannot be acted uponfor the purpose of framing a charge in such a case.
Section 151 (2) directs the Magistrate to examine on oath—
the person who has brought the accused before the court; and
any other person who may be present in court able to speak tothe facts of the case.
The provision is directly applicable in a case referred to in section 148(1) (d), that is where “ a person is brought before a Magistrate in custodywithout process ”; accordingly it seems to me that the meaning of theprovision can be best ascertained by a consideration of its applicationin that particular case. In very nearly every such case the personwould be brought to court in the custody of a police officer or of someother officer authorised to make an arrest. This officer has necessarilyto be examined on oath by the Magistrate. But bis knowledge of thefacts of the case will not, save in exceptional circumstances, be direct,so that his examination by the Magistrate will ordinarily reveal onlythe substance of the complaint made by some other person and theresults of any inquiry which he, or spme other officer, may have conducted.In so far therefore as the examination of this officer is concerned, thecourt is compelled by section 151 (2) to place on record evidence whichcan be largely or even totally hearsay.
Turning now to the other examination directed by the section, theMagistrate is expressly required only to examine any person who maybe present in court able to speak to the facts of the case. Prima faciesection 151 (2) appears to be applicable on the occasion when a person,is produced in custody, or in other words to direct what action a Magistrateshould take on such an occasion. In the absence of any provision inthe section which requires or enables a Magistrate to secure the attendanceof some person not present in court on that occasion, I cannot agreewith the view taken in Tikiri Banda v. Perimpanayagam (Sub-Inspectorof Police), (supra) that the Magistrate is bound by the section to summonand examine some person able to speak to the facts of the case who isnot present on the occasion when the accused is produced in custody.
i (1959) 61 N. L. B. 286.
40 H. N. G. FERNANDO, J.—Martin Appuhamy v. Sub-Inspector of Police, Jaffna
Such a view would be justifiable only if there is compelling reason toimport into the section a duty or power not expressed therein. Itremains to consider whether any such reason is suggested in the context.
Bearing in mind that the “ prime ” case contemplated in sub-section 2of section 151 is that in which a person is produced in custody so thatno. issue of process is necessary, it is clear that the purpose of theexamination directed by the sub-section is that the Magistrate may bein a position to decide whether “ there is sufficient ground, for proceedingagainst ” the person brought in custody (vide section 187 (1) ). Sinceidentical language occurs in sub-section (1) of section 151, it seems tome perfectly legitimate to infer that in all probability the legislatureintended that the step to be taken under section 187 (1) may be takenupon material of substantially the same weight and value as that uponwhich a Magistrate may take under sub-section 1 of section 151 the steptherein mentioned, namely the issue of process against a person not incustody.
One knows from experience that in the vast majority of cases wherea report under section 148 (1) (6) is furnished to the court, the step ofissuing summonses is generally taken under sub-section 1 of section 151solely upon the report: in other words a Magistrate when he issuessummons ordinarily forms, upon the material of the report, the opinionthat “ there is sufficient ground for proceeding against ” some personnot in custody. Reverting now to the examination under sub-section 2, itseems to me that even if the police officer who produces a person in custodyis only able to speak to matters not within his own knowledge and toreport only what has been said to him by some other person, the weightor value of what he so orally states can be at least equal to that ofmaterial which may be furnished by a police officer in a written report :it may even be of greater value for the reason that it is stated on oathin the presence of the court and not merely in writing.
The decision in Tikiri Banda v. Perimpanayagam (supra) would renderessential the recording of direct evidence, such as that of an eye-witness,which implicates the accused. To my mind the omission of the legislatureto provide expressly for the taking of evidence of this kind is significanthaving regard to the difference in the language of sub-section 2 of section151 as compared with the language of sub-section 1. The proviso (ii) tosub-section 1 expressly requires that before issuing a warrant againsta person who is accused in a section 148 (1) (b) report, the Magistrateshall examine on oath the complainant or some material witness or witnesses.It would seem prima facie that even under this proviso it would be sufficientfor the Magistrate to examine the complainant, who will ordinarily bethe police officer making the report, and that therefore even the languageof this proviso may not require as a matter of necessity the examinationof “ some material witnesses ”. But assuming for the purposes ofargument that this proviso does compulsorily require some direct evidenceto be recorded, what is significant is that the legislature in sub-section 2
SINNETAMBY , J.—Martin Appuhamy v. Sub-Inspector of Police, Jaffna 41
chose to provide for the examination not of some material witness, butonly of any person who may be present in court able to speak to thefacts of the case. One point of difference in sub-section 2 is that thereis here no reference to “ some material witness ” : and if that meansa person who can give direct evidence, then the person referred to insub-section 2 might well be one who cannot give direct evidence butonly testify to some matters related to him, say by a person who cannotattend court because he is lying injured in a hospital. The secondpoint of difference is that a person to be examined under sub-section 2is a person “ who may be present in court ”, so that prima facie at leastthe words do not compulsorily require the Magistrate to examine anyonewho is not present in court on the occasion when the sub-section becomesapplicable, that is on the occasion when a person is produced in court.While in the proviso to sub-section 1 it is made clear that the proceedingmay have to be adjourned in order to secure the attendance of somematerial witness, the language of sub-section 2 indicates on the contrarythat adjournment for such a purpose need not be a normal step. In myview it would not be reasonable to imply that the language in the twoprovisos, so different in many important respects, was intended neverthelessto convey the same meaning.
For these reasons my answer to the second question referred forconsideration is that section 151 (2) does not compel a Magistrate torecord direct evidence implicating an accused person and does not excludethe admission of hearsay upon an examination under the sub-section,I would hold that Tikiri Banda v. Perimpanayagain {supra) was to thisextent wrongly decided.
The charge in this case was read after the Magistrate had recordedevidence, of the Inspector of Police who had investigated the complaintagainst the accused. This examination in my opinion satisfies therequirements of section 151 (2) of the Criminal Procedure Code. I wouldaccordingly dismiss the appeal.
Sennet amby, J.—
I have had the advantage of reading the judgments prepared byMy Lord the Chief Justice and my brother H. N. G. Fernando, J. I agreewith the conclusions they have reached in regard to the first questionreserved for determination by this Bench, namely, that the decision inMohideen v. Inspector of Police, Pettdh1, is applicable to all cases wherean accused person is brought before a Court otherwise than on a summonsor a warrant. It would appear that in the case which has been referredto us for consideration of these questions, the accused had first beenproduced by the Police with a report under section 126 (A) of the CriminalProcedure Code and remanded pending investigations. On a subsequentdate the police filed plaint under section 148 (1) (b). In Mohideen v.Inspector of Police {supra) the facts were identically the same. Theretoo, the accused had first been remanded pending investigations and was
1 {1957) 59 N. L. R. 217.
42 SINNETAMBY, J.—Marlin Apjyuhainy v. Sub-Inspector of Police, Jaffna
under fiscal custody and then plaint was filed under section 148 (1) (6).
I agree with Fernando, J. that the case Lamancitissa de Silva v. Sub-Inspector of Police, 31 alar a1 was -wrongly decided.
The second question reserved for the consideration of this Bench isone of some difficulty. It is undoubtedly correct that section 151 (2)imposes upon a Magistrate the duty to examine the person who broughtthe accused before Court and any other persons who may be presentand able to speak to the facts of the case; and it may be that neither •the person who produces the accused nor any other person present wouldbe able to give direct evidence of facts to enable the Court to concludethat there are sufficient grounds for proceeding against the accused : it mayalso be that such a conclusion can only be reached if the personproducing the accused person is permitted to give evidence of whateye-witnesses had told him. The question that poses itself immediatelyis whether it is permissible for a police officer, who invariably wouldbe the person producing an accused otherwise than upon a warrant,to give evidence of what witnesses told him in the course of his .investigations. It seems to me that he would be debarred from doing .so having regard to the interpretation placed upon the relevant provisionsof the Criminal Procedure Code and the Evidence Ordinance by aDivisional Bench of this Court in Queen v. Buddharakkita Thera et al.2.It would follow, therefore, that it is not open to a police officer in givingevidence under section 151 (2) to state what witnesses told him in thecourse of his investigations. A police officer must confine his evidenceto what he actually knows and to the information which he receivedunder section 121 (1) of the Criminal Procedure Code, which of coursewould be admissible evidence. To give evidence of what other witnessestold him would be to act in contravention of the provisions of section 122(3) as interpreted in the Buddharakhita cane. On this ground alone,therefore, it seems to me that if the material before the Court on theday the accused is produced is insufficient to enable the Magistrate toframe a charge, then an adjournment should be sought in order thatmaterial witnesses may be summoned to give evidence.
There is another aspect of the matter deserving consideration. It is aprinciple rigidly followed by framers of the Code that wherever theliberty of the subject is involved an independent judgment, that is tosay, other than the judgment of the police, is brought to bear upon thefacts of the case before an order imperilling the subject’s liberty is made.It is for that reason that express provision was made for a police officerinvestigating an offence to produce an accused person before a Magistratewithin twenty-four hours of his arrest and then obtain the Magistrate’sorder for further remands pending further investigations. That isprovided for in section 126 (A) of the Criminal Procedure Code and theMagistrate in doing so undoubtedly is guided by police reports of whatwitnesses stated in the course of police investigations. The burden ofdeciding whether the accused should be further remanded is by that
1 (1900) 02 N. L. R. 92.
*(1962) 63 N. L. R. 433.
SINNETAMBY, J.—Martin Appuhamy v. Sub-Inspector of Police, Jaffna 43
section placed on the Magistrate. What, the Magistrate peruses is notevidence in the case and it is open to him to refuse to remand the accused.At that stage he is only concerned with deciding whether the complaintis well founded and not with whether the accused should be chargedand brought to trial. The report is not evidence in the case.
Section 148 which deals with the way in which the proceedings in theMagistrate’s court may be instituted permits summons to be issued by theMagistrate on complaints whether made orally or in writing. Undersub-section 1 (a) the complaint may be made by a private person andunder section 1 (6) in writing by a person holding an official position.In either case, if it is sought to obtain a warrant of arrest, the procedureexpressly provides that the Magistrate shall before doing so examinethe complainant or some material witness or witnesses. It makes nodifference whether the plaint is a private plaint or a police plaint. Ineither case, before a warrant is ordered, the law requires the Magistrateto bring his independent judgment to bear upon the facts. Whereproceedings are instituted under section. 148 (1) (c), (e) or (/) it is open to aMagistrate to issue a warrant in the first instance without any examination ;but in these cases the Magistrate himself, or the Attorney-General or aJudge has brought his mind to bear upon the facts. It will thus be seenthat throughout, the procedure prescribed secures in some way anexamination of the facts by an independent judicial mind before theliberty of a subject is imperilled. Now, in proceedings under section148 (1) (d) we have a person brought to court without process. He maybe so brought by a police officer or by a private person and he has alreadybeen deprived of his liberty. It seems to me that in such a case too theCode, following the same policy, requires a judicial mind to be broughtto bear upon the facts in order to ascertain whether the accused has beenproperly deprived of his liberty and to decide whether he should befurther remanded or admitted to bail. If upon consideration of thefacts the Magistrate thinks that there are no grounds for proceedingagainst the accused, he would be discharged, but if there are groundsthe Magistrate is required to frame a charge. It is essential, therefore,that a Magistrate should be placed in possession of all the material factsand this can only be done by admissible evidence of the facts being led.Such evidence being the material on which the Court acts forms part ofthe proceedings and the witnesses called are liable to be examined andin due course cross-examined in the normal way. Indeed, it would bewrong and in my view illegal not to recall and tender such a witness forcross-examination.
. For these reasons I am of the opinion that the decision in Tikiri BandaPerimpanayagam1 is correct and when a police officer produces accusedpersons in custody he should take steps to see that the material witnessesare present to be examined by Court, or obtain an adjournment to do so.He should not give hearsay evidence except of the first information.
* {1959) 61 N. L. R.2?6.